COURT FILE NO.: 19-80032 DATE: 2019/07/16 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Xinshi Wang by her litigation guardians Ji Zhang and Jingxiang Wang AND The Wawanesa Mutual Insurance Company
BEFORE: Justice Heather J. Williams
COUNSEL: Counsel for the applicant: Mary Dubé
HEARD: In Writing
Endorsement
[1] This is further to my endorsement of June 3, 2019.
[2] I had attempted to schedule an appointment in court with the applicant’s lawyer to discuss my concerns about the proposed settlement and the application materials. However, the applicant’s lawyer has advised that she is overseas for family reasons and has given no indication of when she will be returning to Ottawa. In the circumstances and for clarity, I will set out my concerns in writing:
a. In order to assess the appropriateness of the settlement, I will require a copy of the McKellar Structured Settlement report. The affidavit of Ms. Dubé states that it is attached as Exhibit L but only the McKellar covering letter is in fact attached.
b. On the assumption that the numbers quoted in the McKellar report are higher than the proposed $250,000.00 settlement, I will require evidence to explain why the $250,000.00 settlement was recommended.
c. I require evidence of the offers exchanged by the parties, including but not limited to the offers referred to in para. 29 of Ms. Dubé’s affidavit.
d. None of the exhibits to any of the affidavits filed in support of this application was commissioned on the same day as the accompanying affidavit was sworn. This is improper and suggests that the exhibits were not attached when the affidavits were sworn, even though the affidavits said they were. I have already mentioned that the McKellar report was not attached to Ms. Dubé’s affidavit. Evidence is required confirming that the exhibits attached to the affidavits are the exhibits the affiants swore were attached at the time the affidavits were signed.
e. The contingency fee retainer agreement does not comply with the regulation under the Solicitors Act, R.S.O. 1990, c. S.15 in several respects. On this basis alone, the CFRA cannot be approved. The CFRA has two further deficits which must be addressed, if only so that the failure to address them is not interpreted as an endorsement: (1) The CFRA was signed by the applicant Ms. Wang, who had suffered a head injury in a collision between her bicycle and a car and has now been declared to be mentally incapable under the Substitute Decisions Act, 1992, S.O. 1992, c. 30. Although the formal finding of incapacity was not made until several years after the CFRA was signed, because of the effects of Ms. Wang’s head injury, some evidence would have been required to address her capacity and that there was no reason to believe that she was not capable of signing the agreement at the time she signed it; (2) It is concerning that Ms. Wang does not speak or read English and yet there was no evidence about who, if anyone, translated the CFRA for her and also that the last line of the agreement states that Ms. Wang had read the contract carefully. Obviously, she had not read it at all. Presumably someone had read it to her in her own language, but there is no evidence of that. In an application for approval of a CFRA, the onus is on the lawyer to show that that way in which the agreement was obtained was fair. The fairness requirement “is concerned with the circumstances surrounding the making of the agreement and whether the client fully understands and appreciated the nature of the agreement he or she executed.” (Raphael Partners v. Lam, 61 O.R. (3d) 417 (C.A.) at para. 37).
f. As the CFRA is not approved, I must approve the applicant’s counsel’s fees. The applicant’s counsel shall submit evidence of the following: the number of hours she worked on the applicant’s file; the tasks performed and the time devoted to each task; the hourly rate or rates she proposes to charge; all disbursements; the total amount of fees, disbursements and HST she proposes to charge; a breakdown of all amounts already paid to the applicant’s counsel by or on behalf of the applicant; any other amounts, if any, other than legal fees, disbursements and HST to be deducted from the applicant’s settlement; and the precise amount ultimately to be paid to the applicant.
g. Based on the evidence filed, I am not convinced that using Ms. Wang’s settlement funds to purchase a house is in her best interests, particularly given that she is on a waiting list for a long-term care facility.
Ms. Wang and her husband now live in a home which is also occupied by their daughter-in-law and their grandson.
Ms. Wang’s husband and daughter-in-law are Ms. Wang’s guardians.
The proposal to purchase a house is supported by evidence that appears to be contradictory. For example, there is evidence that Ms. Wang finds living with her grandson to be stressful because he is rambunctious and that she would like to live somewhere quiet. Her guardians, however, propose to purchase a house for her to live in with her husband and then to rent out rooms in the house, possibly to high school students. There is no evidence to explain why this would be a more quiet and suitable environment for Ms. Wang. Further, there is evidence that Ms. Wang’s husband has suffered from caretaker burnout and that his health is declining. There is no evidence to explain why moving away from a home in which another adult, the daughter-in-law, also resides would maintain or improve the level of supervision and care available to Ms. Wang.
There is also no evidence about who would maintain the new house or about the cost of its upkeep.
As I noted above, at present, Ms. Wang, her husband, her daughter-in-law and their grandson all live in the same house. If approved, the effect the proposed management plan would be that the daughter-in-law and the grandson would live in one house and the mentally incapable Ms. Wang and her ailing husband would live in the new house, with tenants. Before I would approve such a management plan, I would require evidence to address the issues I have raised and to satisfy me that the plan is in Ms. Wang’s best interests and is not a proposal to use Ms. Wang’s settlement funds effectively to buy a house for the daughter-in-law and the grandson.
Additional evidence may be filed in support of the management plan. Alternatively, the applicant may wish to propose a different management plan.
[3] The applicant’s counsel may file the additional evidence through the trial coordinator.